Case Note & Summary
The dispute arose under the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 concerning the validity of a housing scheme notified by the U.P. Avas Evam Vikas Parishad and challenged by a cooperative housing society. The Supreme Court heard an appeal by special leave against a Division Bench judgment of the Allahabad High Court which had declared the notification under Section 28 and declaration under Section 32 of the Adhiniyam invalid for want of prior approval of the State Government under exception (iii) to Section 59(1)(a). The chronology began with a declaration under Section 3 on September 3, 1977, followed by a notification under Section 28 on June 7, 1982. The appellant sought approval by letter dated July 27, 1982, and the State Government approved the scheme on August 24, 1982. A declaration under Section 32 was published on February 28, 1987. The respondent society filed writ petition No. 14708/84, and the High Court followed an earlier decision in Narinder Mohan Foundation Trust v. Special Land Acquisition Officer, Meerut, holding that prior approval was essential and that its absence rendered the notification and declaration invalid. The core legal issue was whether exception (iii) to Section 59(1)(a) required prior approval or whether subsequent approval could validate the earlier steps. The court examined the statutory language and noted that if prior approval had been a precondition, the Act would have expressly said so. It drew a distinction between approval and permission, observing that approval holds good until disapproved, whereas permission does not become effective until obtained; permission subsequently granted may validate the previous act. Relying on Life Insurance Corpn. of India v. Escorts Ltd. and Lord Krishna Textiles Mills Ltd. v. Workmen, the court held that the word 'approval' in exception (iii) did not imply prior approval. Once approval was given, all previous acts done in anticipation of approval were validated, and the publications under the Act became valid. Despite this legal declaration, the court declined to interfere under Article 136 because on similar facts the appellant had compromised with others but had not extended the same benefit to the respondents. The court also recognised that the right to shelter is a fundamental right flowing from the right to residence under Article 19(1)(e) and the right to life under Article 21. It noted that construction must conform to layout and building rules but that could not be a ground to refuse permission when persons approach authorities in accordance with law. Accordingly, the law was declared, but the appeal was dismissed, leaving the High Court's order in favour of the respondents intact.
Headnote
A) Interpretation of Statutes - Meaning of Approval vs Permission - Prior approval not required under exception (iii) to Section 59(1)(a) - U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, Section 59(1)(a) - The court considered whether approval of State Government under exception (iii) must be prior to notification under Section 28 and declaration under Section 32. Held that the word 'approval' does not imply prior approval; once approval is given, all previous acts done in anticipation are validated. Distinguished approval from permission, relying on LIC v. Escorts and Lord Krishna Textiles Mills. (Paras not mentioned) B) Constitution of India - Right to Shelter - Fundamental Rights - Article 19(1)(e) and Article 21 - The court observed that respondents' society members needed sites for housing and that right to shelter is a fundamental right. Held that construction must conform to layout and building rules but cannot be ground to refuse permission; appeal dismissed. (Paras not mentioned) C) Supreme Court - Jurisdiction under Article 136 - Discretionary Interference - Constitution of India, Article 136 - The court declined to interfere because on similar facts the appellant had compromised with others but not extended the same to respondents; held not a fit case for Article 136 jurisdiction. (Paras not mentioned)
Issue of Consideration
Whether prior approval of the State Government is a precondition under exception (iii) to Section 59(1)(a) of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 before issuance of notification under Section 28 or declaration under Section 32; whether subsequent approval validates prior acts and notifications; whether the case warrants interference under Article 136 of the Constitution; and whether right to shelter is a fundamental right.
Final Decision
Appeal dismissed; law declared that approval under exception (iii) of Section 59(1)(a) of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 need not be prior, and subsequent approval validates previous acts and notifications; declined Article 136 interference due to appellant's unequal treatment of respondents; right to shelter recognized as fundamental right.
Law Points
- Approval under exception (iii) to Section 59(1)(a) of U.P. Avas Evam Vikas Parishad Adhiniyam
- 1965 need not be prior
- subsequent approval validates previous acts
- approval differs from permission
- right to shelter is a fundamental right under Articles 19(1)(e) and 21 of the Constitution
- discretion under Article 136 not exercised when similarly placed persons treated unequally
